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September 18, 2008

Tough Times for Tom Frankovich

San Francisco-based attorney Thomas Frankovich is well known for making his living bringing hundreds of disability-access suits for serial plaintiffs across the state. But times have gotten a bit tough for him recently. He's lost at trial several times, and courts have granted his opponents attorneys fees.

In many a Frankovich case, sued businesses simply settle, say attorneys who have represented targeted businesses. According to Steve Bovarnick, a defense attorney who estimates he's opposed Frankovich in 10 to 12 cases, the specter of losing and paying the plaintiff's attorneys fees has played a big role in pressing his clients to settle, which they have done on each occasion.

"[Disability access cases] are very much expert-driven, the area of the law is complex, generally the damages are small, so it's typically a business decision made by the defendants to settle rather than to fight," Bovarnick said. "Settlements are driven by the prospect the businesses will have to pay out not only their cost to their own counsel but also the prospect that they may have to pay the plaintiff [attorneys fees]."

But things didn't play out this way in a recent San Francisco case, Jankey v. K&D Market. Jankey (and Frankovich) sued the small grocery and liquor store in the city's Mission District in May 2007, alleging that a raised step at the front door prevented him and other people who use wheelchairs from entering, and Superior Court Judge Patrick Mahoney granted summary judgment for the market this past May. The judge awarded $122,002 in fees and costs to the defense, led by Jason Gong of Walnut Creek's Livingston Law Firm. That award is more than three times larger than what Frankovich was forced to pay in Molski v. Arciero Wine Group, 08 C.D.O.S. 8573, a similar disability-access case that Frankovich lost on appeal in July.

Gong, in his motion for attorneys fees, wrote that [K & D Market] achieved a result in this case that is rarely (if ever) seen against plaintiffs' campaign of serial litigation against small business owners," he wrote.

In addition to those losses, the Ninth Circuit U.S. Court of Appeals decided in April to let a district judge's ruling stand in another Molski case – Molski v. Evergreen Dynasty Corp., 08 C.D.O.S 4021 – leaving in place a sanction that labels Molski a "vexatious litigant" and requires Frankovich to seek filing permission from the court when working in the Central District. Frankovich had sought $1.5 million in damages in that case, which ended with U.S. District Judge Edward Rafeedie, who presided, criticizing Frankovich's tactics, sanctioning him and referring him to the State Bar for investigation.

Frankovich did not return a call seeking comment this week. Though his practice has provoked the ire of some judges and the collective reprehension of many in the California business community, Frankovich has stood strong in his own defense. Speaking to an SF Weekly reporter in 2007, the alligator-booted Frankovich said that "the best defense is a good offense ...You keep going. You don't stop. The only thing that works is firepower; the more the better."